Feld Entertainment, Inc (FEI), owner of the Ringling Brothers and Barnum & Bailey circus, is attempting to coerce confidential donor lists from the animal welfare groups it has battled with for 13+ years in the DC federal courts. FEI’s lawyers are doing so in an attempt to prove that the animal welfare organizations it’s suing—the Humane Society of the United States, Animal Welfare Institute, Fund for Animals, Born Free USA, and the Wildlife Advocacy Project—engaged in “donor fraud” in their solicitation of funds to continue their battle to help circus elephants.
Specifically, FEI’s discovery request demands the following:
27. All documents that refer, reflect or relate to donations (whether financial or in kind) that were designated or otherwise earmarked by the donor for use in connection with the ESA Action or that were designated or otherwise earmarked by the donor to support work or any other form of activity concerning Tom Rider, FEI or FEI’s elephants.
28. All documents, not otherwise covered by Request No. 27, that refer, reflect or relate to donations (whether financial or in kind) that were made as a result of the ESA Action, Tom Rider, FEI or FEI’s elephants.
29. All documents sufficient to identify each and every person or entity who made any of the donations described in Request Nos. 27 and 28.
Considering that any donation to any of the agencies in the last 15 years could have come about, at least in part, because of the agencies’ actions in regards to circus elephants, and we’re basically looking at giving FEI access to every person who has donated to one of these animal welfare groups. Even if the court narrows the request to only those donations specifically designated for the struggle to free Ringling Brothers circus elephants, we’re still looking at exposing a significant number of donors to direct inclusion in a complicated, intimidating legal action.
Donors’ freedom of association rights, guaranteed under the First Amendment, allow us to support organizations and causes without fear of repercussion or reprisal. An important aspect to this is being able to privately provide financial support to advocacy groups, as long as state and federal laws are met.
The only possible reason for demanding these lists is so that FEI’s lawyers can, we presume, contact donors directly in an attempt to find “co-plaintiffs” for its lawsuit. FEI assures us it would not do so to “harass” the people, according to its definition of “harass”, but we can easily imagine the shock people would experience receiving a letter from FEI’s lawyers related to this lawsuit. Depending on how the letter is worded, many of these people may feel that if they don’t join with Feld, they’ll find themselves lumped into the lawsuit on the other side. This is the worst case scenario demonstrating why it’s essential for these donor lists to be kept private.
From the animal welfare group’s request for a protective order against this demand:
Subjecting individuals to the stress of depositions, the cost of retaining counsel, and the risk of crushing RICO liability, for their simple act of contributing to a nonprofit organization, is incompatible with the First Amendment’s protection of free speech and association. Furthermore, FEI’s history with regard to animal welfare and animal rights supporters raises real concerns that the harassment to which donors could be subjected would not stop at being embroiled in this litigation.
As an excuse for its actions, the FEI lawyers note that several donors to the organizations are already a matter of public record. However, the lawyers dance around the fact that the donors who have been listed publicly are typically either organizational donors who must indicate their donations in their own public tax forms or individual or organizations donating over a certain amount (usually $5,000), requiring public disclosure.
FEI doesn’t want these people and organizations, though. It wants the names of the little guy, like you and me. FEI’s lawyers can’t intimidate organizations and wealthier donors, both of whom have easy access to legal advice. But you and I? Look around you; look at your friends, family, and co-workers…how would most of these folk react to receiving an intimidating communication from a high priced and powerful law firm? How would you?
There are also serious consequences to the animal welfare organizations. All of the organizations involved in the lawsuit have posted privacy policies. These policies are necessary if they hope to get decent scores from the charity rating services, such as Charity Navigator and the BBB. If the animal welfare organizations are forced into giving their donor lists over to an entity their supporters consider an adversary, such action will, most likely, impact negatively on their rating score. Charity Navigator and the BBB may be sympathetic to the fact that the animal welfare groups have been coerced into giving over their lists, but charity ratings services are focused on providing service to donors, and they’ll have to respond accordingly. Lower charity ratings can, and do, impact on donations.
More importantly, people are going to hesitate before donating to any organization or effort that will end up involving them in the middle of long, drawn out, and incredibly acrimonious legal action.
What’re FEI’s lawyers take on the issue of donor privacy? A laughable suggestion that if only the court would grant its request to have everything in the case covered under a blanket protective order, the donors First Amendment rights won’t be an issue, because the donor lists wouldn’t be made public. I call this suggestion “laughable” because FEI’s lawyers again dance around—on tippy toes, like little Brooks Brothers-suited ballarinas—the fact that the one organization the donors loath the most is the one who would get their contact information and donor activity. Not only get this information but also use it to contact them in hopes of dragging them into a frightening legal morass.
FEI’s lawyers claim they need this information because the bad ass animal welfare lawyers aren’t allowing them to proceed with their action unless there is more than one plaintiff:
Defendants have placed FEI between the proverbial “rock and a hard place.” They claim that FEI must allege more than one scheme and victim to state a RICO “pattern,” but then argue that the First Amendment blocks any and all discovery as to the second scheme and additional victims alleged in the First Amended Complaint.
Though the lawyers for the animal welfare groups are very capable, they’re not faster than a speeding bullet, nor can they jump Feld Entertainment’s legal slush fund in a single bound. I believe it is actually the Judge, applying his legal understanding and training, in combination with precedent and the underlying law, that is forcing FEI into the proverbial “rock and hard place”. This case was fragile from the very beginning—allowing the loss of First Amendment protections and exposing hundreds or even thousands of people to legal intimidation, in a desperate attempt to make it less so, is unconscionable.
The request is made even more absurd by the fact that this case has been covered in the news for many years. People in the animal welfare movement, especially among those fighting for the welfare of circus elephants, are aware of this case. This story, itself, will be linked in several Facebook groups devoted to elephants, generally, and circus elephants, specifically. This, in addition to a Facebook page devoted to the court cases. No one has come forward, no one has joined with Feld. No one.
Hopefully, the Judge will consider the wide dissemination of this information and will determine there is no need to give FEI these donor lists…and the donors First Amendment rights will be preserved.
Good news, and confusing news.